NYAPRS Note: Once more, the Bazelon Center legal rights experts have done a thorough review of the record of a Supreme Court nominee and, in the case of current nominee Brett Kavanaugh, have raised grave concerns. If you agree, join us in contacting your Senator to share your opposition!

The Bazelon Center for Mental Health Law strongly opposes the nomination of Judge Brett Kavanaugh to serve on the U.S. Supreme Court. The appointment of Judge Kavanaugh would threaten hard-won rights and protections for people with disabilities. Judge Kavanaugh’s record demonstrates his great skepticism of the Affordable Care Act, his hostility to civil rights—including the rights of people with disabilities—and his narrow view of the authority of executive branch agencies to interpret and enforce the law. His confirmation could add a fifth vote for such regressive views. A summary of his record is provided below.

REVIEW OF DISABILITY-RELATED CASES INVOLVING JUDGE BRETT KAVANAUGH

(see attachment for full analysis)

I. Access to Health Care

Access to health care is crucial to ensuring that people with disabilities are able to live, work, and succeed in their communities. Troublingly, in a series of public appearances, Judge Kavanaugh has repeatedly expressed skepticism of the Affordable Care Act (ACA), criticism of Chief Justice Roberts’ reasoning in upholding the ACA, and concerns about its “unprecedented” nature.1 These comments indicate that Judge Kavanaugh would embrace the various challenges to the ACA that continue to make their way through the courts.

II. Self-Determination

Like all people, the decisions of people with disabilities, including their choices about the medical care they receive, should be respected to the maximum extent possible. Despite this basic principle, people with disabilities, and particularly people with intellectual and developmental disabilities, have experienced a long and shameful history of forced sterilization and other state-sanctioned intrusions into their physical autonomy.

Judge Kavanaugh has long been a proponent of voucher programs, previously serving as co-chairman of the Federalist Society’s “School Choice Practice Group.”34 As an attorney, he defended a Florida school voucher program called the Opportunity Scholarship Program, which provided state funding for some students to enroll in private schools. In 2006, the Florida Supreme Court declared that the Opportunity Scholarship Program violated the state constitution’s guarantee of “a uniform, efficient, safe, secure, and high quality system of free public schools.”35 Students with disabilities who participate in school voucher programs are typically forced to waive their rights under the Individuals with Disabilities Education Act (IDEA), including the right to receive a free and appropriate education (FAPE).

V. Access to Justice and Voting Rights

Judge Kavanaugh’s record on other fundamental rights, including the right to pursue claims in court, also raises concerns about his willingness to ensure justice for all Americans. For example, he authored a strongly worded dissent in Cohen v. U.S.,41 a challenge to a refund mechanism established by the Internal Revenue Service brought by a putative class of taxpayers. Judge Kavanaugh charged the plaintiffs with seeking a “class-wide jackpot” by filing a class-action lawsuit requesting “billions of dollars in additional refunds to millions of as-yet-unnamed individuals.”42 He also contended that the court should have barred the plaintiffs from bringing their challenge as a class until after they had filed claims under the refund mechanism to which they objected.43 The class action is an indispensable tool that enables people with disabilities and others with limited means to pursue justice as a group, rather than being forced to litigate separately at great cost and effort.

VI. Agency Authority

Administrative agencies, such as the Departments of Justice, Education, and Health and Human Services, play a large role in enforcing civil rights protections and managing federal healthcare and benefits programs that are crucial to many people with disabilities. Judge Kavanaugh’s writings and opinions demonstrate that he shares Justice Gorsuch’s antipathy for agencies’ role in interpreting and implementing laws, including limiting their ability to make decisions regarding the laws they are expressly charged with implementing.